The circuit split.

November 6, 2014 2:11 PM

Today, by a 2-1 decision, the Sixth Circuit upheld the same-sex marriage bans in Ohio, Kentucky, Tennessee and Michigan. reversing a federal district court decision and creating a circuit split: the Sixth Circuit has upheld bans, while the Fourth, Seventh, and Tenth Circuits have struck them down.

According to SCOTUSblog: Probably the only way that this ruling would not predictably lead to Supreme Court review, it appears, is if there is a request for en banc review in the Sixth Circuit, and that request is granted.

posted by roomthreeseventeen (65 comments total)

*shakes fist at 6th Circuit Court of Appeals*
posted by komara at 2:16 PM on November 6, 2014 [4 favorites]

So here we go... it looks like we're ready for the big showdown.
posted by naju at 2:17 PM on November 6, 2014 [5 favorites]

The silver lining: literally the second sentence is From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen.
Don't get me wrong, this case is still stupid and bullshit and I'm still hate-reading it to figure out what other adjectives go there.
posted by Lemurrhea at 2:19 PM on November 6, 2014 [1 favorite]

Paging Justice Kennedy
posted by T.D. Strange at 2:21 PM on November 6, 2014

This is an article made about one of the Ohio plaintiffs, who traveled by plane with his critically ill partner to Maryland. Once on the ground, they married there and then flew back home.
posted by roomthreeseventeen at 2:22 PM on November 6, 2014 [1 favorite]

It is stupid and bullshit that we have to endure this process, but it's good that the process *IS* moving forward, and I think we all agree on the inevitable conclusion.
posted by mikelieman at 2:22 PM on November 6, 2014

“When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better, in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

No, not "judges and lawyers." A judge, a lawyer: Anthony Kennedy.
posted by resurrexit at 2:24 PM on November 6, 2014 [1 favorite]

Every time I read anything about the high courts there's so many double negatives I cannot follow at all. There should be a Supreme Court plugin that strips them.
posted by bleep at 2:24 PM on November 6, 2014 [6 favorites]

Let's see, majority opinion was authored by Judge Sutton and Judge Cook (George W. Bush appointees).

Dissent was by Judge Daughtrey (appointed by Clinton).


But the parties are the same, really.
posted by longdaysjourney at 2:31 PM on November 6, 2014 [28 favorites]

I'm amazed by people still fighting the tide of history on this.
posted by DirtyOldTown at 2:33 PM on November 6, 2014 [2 favorites]

This is an article made about one of the Ohio plaintiffs, who traveled by plane with his critically ill partner to Maryland. Once on the ground, they married there and then flew back home.

I remember that story from last year - what an amazing person to still be fighting for this.
posted by maryr at 2:35 PM on November 6, 2014

The decision reads like a throwdown to the SCOTUS, relying on the Court's refusal to state a principal dismissing in last year's Hollingsworth. I'm left wondering if the 6th Cir. isn't intentionally trolling SCOTUS and forcing them to take up the issue when they'd clearly rather not have to.
posted by T.D. Strange at 2:38 PM on November 6, 2014 [9 favorites]

It's a win for bigotry and discrimination! Oh yes, let the people decide lest the judges be the only heroes! Spread the heroism around! That always works.
posted by Catblack at 2:39 PM on November 6, 2014 [3 favorites]

Better, in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

Yeah, we tried that. Ended up with state constitutional amendments decreeing that queers are second-class citizens. Ended up with DOMA. By that stupid and twised logic, Loving v. Virginia shouldn't have happened, and everyone of African descent should have just talked nice to the racists.

Fuck. That. Noise. I am not going to talk nice to people who say my love is not worth as much as theirs. I am not going to have a dialogue with them. I am going to tell them to fuck off and stop trying to control my life, because to them, 'fair minded' means 'too bad for you, queer.' To them, 'fair minded' means we have to bow to their discrimination and hatred. In a word: no.

Part of me hopes for a rehearing en banc so the risk of going to SCOTUS doesn't exist. Part of me hope that doesn't happen, so SCOTUS can make a pronouncement and end this bullshit forever. Well, hopefully forever.
posted by feckless fecal fear mongering at 2:40 PM on November 6, 2014 [64 favorites]

> "I see this being reversed when this is reheard en banc."

If it is heard en banc ... there's no obligation for the challengers to request an en banc hearing before appealing to the Supreme Court.
posted by kyrademon at 2:40 PM on November 6, 2014

I see this being reversed when this is reheard en banc.

There doesn't have to be an en banc petition though, and the ACLU has said they will be filing for SCOTUS review "right away".
posted by T.D. Strange at 2:40 PM on November 6, 2014

I'm amazed by people still fighting the tide of history on this.

I do understand the court decisions are more about whether courts are the place to make this change, but yeah, when it comes down to ordinary citizens against legal same-sex marriage, at this point it sort of comes off as "I just want to go on record as spitting in your face".
posted by Hoopo at 2:43 PM on November 6, 2014 [6 favorites]

booooooooooooooooooooooo
posted by Jacqueline at 2:46 PM on November 6, 2014 [3 favorites]

All seek dignity and respect, the same dignity and respect given to marriages between opposite-sex couples. And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

I'm just gonna say that conservative legal thinking leaves something to be desired - the decision reads like it was written by a 12 year old.

I'm not saying that because I agree with it. I'm saying that because it is written by someone who has neither a firm grasp of logic or the law.
posted by Pogo_Fuzzybutt at 2:48 PM on November 6, 2014 [2 favorites]

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better [the people] become the heroes of their own stories

This is possibly the most cowardly thing any human being has said, ever. "I don't want to be the hero, you be your own hero."
posted by aw_yiss at 2:49 PM on November 6, 2014 [10 favorites]

If it is constitutionally irrational to stand by the man-woman definition of marriage, it must
be constitutionally irrational to stand by the monogamous definition of marriage.

Oh just fuck right off.

In case people are wondering, the majority is relying on three things:

1. They're bound by Baker, the 1970s-era one-liner dismissing it.
2. It's rational (term of art, doesn't have to be "correct") that the state wants to regulate procreation and therefore creates marriages to encourage kid-having couples to be together.
3. It's rational to wait-and-see.
posted by Lemurrhea at 2:50 PM on November 6, 2014

"A judge, a lawyer:" Panama.
posted by klangklangston at 2:50 PM on November 6, 2014 [2 favorites]

Opposing same sex marriage at this point is a bit like standing next to George Wallace in 1975 and yelling for segregation. It's fucking obvious you've lost, why stand around so late in the game making sure everyone sees you lose?
posted by DirtyOldTown at 2:50 PM on November 6, 2014 [11 favorites]

Pogo_Fuzzybutt: The decision reads like it was written by a 12 year old [...] it is written by someone who has neither a firm grasp of logic or the law.

Well, maybe not a 12 year old, but not much better, according to the dissenting judge:

Senior Circuit Judge Martha Craig Daughtry dissented, calling the Sutton opinion “an introductory lecture in political philosophy,” but one that failed, as an appellate court decision, “to grapple with the relevant constitutional issue in this appeal.”

(But both parties are the same, and losing the Senate is not a big deal.)
posted by RedOrGreen at 2:55 PM on November 6, 2014 [23 favorites]

Yeah this dissent is a masterstroke in vitriolic judgepersonship. Make sure you read it (it starts on page 43).
posted by Lemurrhea at 2:57 PM on November 6, 2014 [3 favorites]

The challengers in the four states in the Sixth Circuit have the option of each filing their own separate appeal to the Supreme Court, and that might be the more likely tactic, since each case has different facts even though the basic constitutional issue is nearly identical among them.

So as long as any one of the four sets of plaintiffs decides to move the Supreme Court, the en banc option becomes moot. I guess I don't see how the Supreme Court punts any longer, then.

On one hand, too bad - it would have been nice to get more states on board organically before the hammer came down from the top. On the other hand - damn it, make it official throughout the country already. Basic rights should not be subject to this kind of nitpicking, and there are real families out there being hurt by the foot dragging.
posted by RedOrGreen at 3:01 PM on November 6, 2014 [2 favorites]

I suspect that after the midterms we just had, the SC might be more agreeable to taking up the question, though the SC is of course not a political body.
posted by saulgoodman at 3:03 PM on November 6, 2014 [1 favorite]

I'm amazed by people still fighting the tide of history on this.

You've clearly never been to Tennessee.
posted by vibrotronica at 3:05 PM on November 6, 2014 [7 favorites]

It's so weird that this all comes down to what one person thinks.
posted by Flunkie at 3:06 PM on November 6, 2014 [3 favorites]

There was always likely to be a Circuit Court split. The 5th and 11th were more likely to uphold bans than any of the others, the 6th simply beat them to it. (Although possibly they are now even more likely to do so now that the 6th has given them some cover, if they get around to deciding their cases before the Supreme Court does. But it probably wouldn't have made much of a difference.)

So, while all the Circuit Courts marching hand-in-hand together into a bright future would have been the best-case scenario, there was never much chance of it going down that way. And given that, going to the Supreme Court earlier rather than later might be a good thing, if it ends up not going to en banc review. Most court watchers think this Court is most likely going to come down on the side of the liberty and justice when it finally comes down to it; there's no guarantee that would be the case in even a few years' time. And the current scenario is a pretty good one, given that the Circuit Courts coming down in favor of same-sex marriage greatly outnumber those against it. There's a lot of legal heft that can be used in argument on one side and very little on the other.

And that having been said, the arguments against same-sex marriage that Sutton used are ... pretty dumb. They are:

(1) Why should the courts decide about marriage at all instead of just leaving the whole thing to the legislature?

Because that's your damn job, and decades' worth of court cases on the subject make this argument fairly ludicrous.

(2) States can have an interest in regulating procreation.

You yourself admit that's not the only reason for marriage anymore, if it ever was; you just don't want to admit the logical implications of that.

(3) States might want to wait and see what happens before changing stuff.

Been around for a decade in the U.S. and longer elsewhere. How long is long enough, exactly, before the complete lack of any resulting problems is as apparent as it needs to be?

(4) The 1972 Baker v. Nelson summary dismissal has never been directly addressed and therefore still applies.

This is the only part that makes a lick of real sense, although it's putting an awful lot of weight on a summary dismissal. But it's basically kicking the ball up to the Supreme Court, and saying, hey, if you changed your mind since 1972, you've got to let us know.

Fingers crossed that they will do just that ...
posted by kyrademon at 3:06 PM on November 6, 2014 [4 favorites]

If it is constitutionally irrational to stand by the man-woman definition of marriage, it must
be constitutionally irrational to stand by the monogamous definition of marriage.

Some of us would agree. Can we get on that multiple partner marriage thing, please?

(In the meantime, everything else I have to say is unprintable, even on the blue.)
posted by joycehealy at 3:11 PM on November 6, 2014 [5 favorites]

You've clearly never been to Tennessee.

I graduated high school and college in Tennessee. I'm still amazed by judges not only too dumb to see the writing on the wall, but trying to make sure history has their names engraved on the losing side.
posted by DirtyOldTown at 3:15 PM on November 6, 2014 [6 favorites]

No, not "judges and lawyers." A judge, a lawyer: Anthony Kennedy.

No, Justice Kennedy has no larger portion of the vote than any of the other 8 Justices.
posted by John Cohen at 3:15 PM on November 6, 2014

Dear every asshole that didn't vote this week:

This is why it matters. Judicial appointments.
posted by Muddler at 3:23 PM on November 6, 2014 [19 favorites]

it's good that the process *IS* moving forward, and I think we all agree on the inevitable conclusion.

I think those of us on this thread agree on what the only morally acceptable outcome would be, but just ask the Russians if that outcome is inevitable.
posted by justsomebodythatyouusedtoknow at 3:26 PM on November 6, 2014

We kinda knew this was going to happen eventually; like the states who tried to ban same-sex marriage but ironically resulted it in becoming legal there faster, this might actually be the fastest way to a nationwide ruling.

I think the court's opinion in this case was cowardly as well as incorrect -- I mean, you're a goddamn Federal judge in the goddamn Court of Appeals, if you don't want to make decisions, you're in the wrong goddamn line of work -- but the USSC was going to have to deal with the issue eventually, much as they might have preferred that it just somehow disappear and spare them the trouble.

Kicking it up the chain quickly is not necessarily a bad thing. I'm not sure that the USSC composition is likely to improve significantly given another six or twelve months. If they don't realize now that to rule against same-sex marriage would be this generation's Dred Scott, Pace v. Alabama, or Bowers v. Hardwick, another couple of months is not going to help much.
posted by Kadin2048 at 3:28 PM on November 6, 2014 [3 favorites]

I think we all agree on the inevitable conclusion

I agree on the conclusion. I have significant doubts it is an inevitable one.
posted by a lungful of dragon at 3:32 PM on November 6, 2014 [2 favorites]

I'm amazed by people still fighting the tide of history on this.

Bullying!

jk anti-marriage equality people are assholes
posted by Aizkolari at 3:40 PM on November 6, 2014

Opposing same sex marriage at this point is a bit like standing next to George Wallace in 1975 and yelling for segregation.

This. Seriously.

OK, bigots- who wants to step up and be the next Strom Thurmond? The ideal candidate would be a deeply closeted Republican lawmaker. C'mon! Roy Cohn could probably use some company in hell.
posted by TheWhiteSkull at 3:40 PM on November 6, 2014 [2 favorites]

I can imagine in the near future, Judge Scalia authoring the majority opinion banning gay marriage and beginning it with "This decision doesn't apply to anything else and not even to my own previous opinions."
posted by dances_with_sneetches at 3:41 PM on November 6, 2014 [1 favorite]

Why is there no link to the opinion in this post? If you want to intelligently discuss this, you need to read what these people write instead of reading some other person's reading of the topic. Because if you don't read it yourself, you miss important points like, on page 16-18, when the Court wrongly interprets the issue of standing based on the Kershner opinion out of Kentucky.
posted by dios at 3:58 PM on November 6, 2014 [6 favorites]

Opposing same sex marriage at this point is a bit like standing next to George Wallace in 1975 and yelling for segregation. It's fucking obvious you've lost, why stand around so late in the game making sure everyone sees you lose?

Principled but wrong.
posted by corb at 3:59 PM on November 6, 2014

OK, bigots- who wants to step up and be the next Strom Thurmond?

The trouble here is that many folks would volunteer. Do you not remember the eulogies and accolades delivered during Thurmond's funeral and memorials? I was living in DC at the time, and I certainly do. From my home state alone, I can quickly guess that Huckabee, Rapert and Cotton will gladly oblige.
posted by late afternoon dreaming hotel at 4:00 PM on November 6, 2014 [1 favorite]

Hey, fuck you Sixth Circuit judges. My aunt lives in Michigan and between the military and other forms of public service has more than earned the privilege of having her civil rights defended by the federal government. Walking away like that was a dick move.
posted by Tell Me No Lies at 4:06 PM on November 6, 2014 [3 favorites]

I live in one of those October sixth states whose citizen's rights were recognized (relatively) immediately. My life, and that of my spouse and our children, was dramatically and significantly altered that day. While it may be a good thing, perhaps, in some sense, for the issue to proceed to the Supreme Court due to this latest decision, my heart goes out to all of those in states affected by this historically wrong decision. People die every day, people have their children taken from them in custody decisions based on marital status every day. A decision next year will not help them, their children or their survivors. This is not a hypothetical; this is real.
posted by Morrigan at 4:09 PM on November 6, 2014 [10 favorites]

“Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

What. The. Fuck?
posted by sfts2 at 4:11 PM on November 6, 2014 [1 favorite]

Translation: "It's okay if queer people don't get rights, because they're a minority and straight people don't want to. They should stop being so demanding and just listen to the other side, because that would be fair. Also, queers are icky."
posted by feckless fecal fear mongering at 4:13 PM on November 6, 2014

Why is there no link to the opinion in this post?

There's a link from the Scotusblog link. And the buzzfeed link. And the equalityontrial link.
posted by Lemurrhea at 4:17 PM on November 6, 2014 [2 favorites]

There will be a petition for an en banc hearing. I suspect it will be granted and this overturned.
posted by eriko at 4:27 PM on November 6, 2014

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better [the people] become the heroes of their own stories.

Brown v. Board of Education
Loving v. Virginia
Lawrence v. Texas

Plenty of judicial heroism there, Sixth Circuit. Do your fucking jobs.
posted by hangashore at 4:29 PM on November 6, 2014 [9 favorites]

The chatter I'm seeing on Twitter is that, given the composition of the 6C, an en banc probably wouldn't overturn it and so a SCOTUS direct play is more likely.

But, y'know, twitter chatter.
posted by Lemurrhea at 4:40 PM on November 6, 2014

Better, in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

Sounds like these guys haven't been following the work of U.S. legislatures recently. "Usually reliable?"
posted by grouse at 4:48 PM on November 6, 2014 [1 favorite]

Better, in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories

Sure, you might die before you're granted basic rights, but think how much more uplifting it will be if and when you get them!
posted by evidenceofabsence at 4:56 PM on November 6, 2014 [4 favorites]

Dear every asshole that didn't vote this week:

This is why it matters. Judicial appointments.

Dear Assholes who are angry other people didn't vote. Maybe you should be angry at your shit leaders for running a shit campaign.
posted by Drinky Die at 5:03 PM on November 6, 2014 [7 favorites]

So is what they're saying that people can be heroes (just for one day) if the people who support marriage equality go out there and try to convince as many people as they can that they should support equal rights and the people who oppose it should do that same to suppress equal rights? And that the bigot who convinces people to suppress rights is just as big a hero as the person working to grant rights? So basically, bigots can be heroes too?

Or am I being unkind?
posted by Joey Michaels at 5:33 PM on November 6, 2014

From the dissent:

Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

posted by MonkeyToes at 5:42 PM on November 6, 2014 [31 favorites]

Dear Assholes who are angry other people didn't vote. Maybe you should be angry at your shit leaders for running a shit campaign.

For those who followed the midterms and know something about them, civil rights for gay people polled a distant something or other for middle class families squeezed by higher cost of living increases, while the Dems sat by and mostly did nothing, except collect corporate lobbyist checks. Not just legislators, either, but most of Obama's cabinet heads were also doing work for corporate donors.

So punching hippies on the Interwebs may feel good, but if you want civil rights for gay people, if you really care about this issue, you have to start supporting politicians who actually share views that make things better for all constituents — not just gay rights, but healthcare costs, and women's rights, and gun control, and taxing the 1%, and food prices, and all the other stuff it takes to run a safe, sane and functional democracy — and they have to be willing to act on those views, not just pay lip service to them.

If you talk to ordinary people, I think you'll find that they have been squeezed by both parties, who no longer represent them. Blame the politicians but don't blame people who are already screwed. Or keep punching hippies on the Internet, if it makes you feel better. But it isn't winning you any good will, or any elections.
posted by a lungful of dragon at 5:43 PM on November 6, 2014 [5 favorites]

Ah, the "both sides do it" argument. And I was just getting over having watched CNN on Tuesday.
posted by one more dead town's last parade at 6:11 PM on November 6, 2014 [7 favorites]

I've been rather unplugged this cycle because I knew I would not be able to legally vote in either my former state of residence or my new state of residence due to the unfortunate timing of the move.

After the fact discussions with friends who chose not to exercise their franchise have revealed that the both sides are the same argument was widely accepted among the relatively liberal Gen Yers. Unfortunate that that view has as much connection to reality as the paranoid rantings typical of Fox News or the Drudge Report. Turns out the Republicans' plan to blame theil Democrats for their obstructionism worked quite swimmingly.

Let's hope the analagous tactic in the judiciary is not as successful.
posted by wierdo at 9:28 PM on November 6, 2014

Sometimes I wish news headlines were annotated like chess moves.

This one would be proceeded by a “??”.
posted by Fongotskilernie at 1:45 AM on November 7, 2014 [2 favorites]

The silver lining: literally the second sentence is From the vantage point of 2014, it would now seem, the question is not whether American law will allow gay couples to marry; it is when and how that will happen.

This is not at all a silver lining. Sutton is basically finding a clever way to infer that it could easily take, without judicial intervention, a century or more for federal law to allow gay couples to marry, but if that's what "the people" want, well, goodness gracious me, that's what the court has to allow.

Sutton then goes on in the same paragraph to eulogize the so-called millennia-long "tradition" of one-man/one-woman marriage.

He is basically mocking progress -- not lauding it.
posted by blucevalo at 7:30 AM on November 7, 2014

Charlie Pierce: Nothing is over until they say it is

I'm not sure that the [Nine Wise Souls] ever wanted this one. The majority on the court often make a public fetish out of the "democratic process," especially when decrying the "judicial activism" of the past. (Not that of fairly recent past, god knows. Or of the immediate past, either.) There was an irresistible political momentum behind marriage equality, something that all those other lower courts tacitly acknowledged in their decisions. If I were any of the current justices, I would have been just as happy to let things rock along toward the inevitable, both in the lower courts and in the state legislatures. Now, though, here comes the case they've been trying to avoid, and it will arrive in the context of renewed conservative power in both the Congress and in state legislatures around the country, and in the context of thousands of Bible-banging yahoos who want the checks they've written to the various ratholes of the conservative movement cashed at last.

If the Nine Wise Souls care, the dissenting opinion of Judge Martha Craig Daughtrey has shown them the way out. Daughtrey explained quite clearly that Sutton's arguments were so much desperate hooey.

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state's constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment. Instead, the majority sets up a false premise-that the question before us is "who should decide?"-and leads us through a largely irrelevant discourse on democracy and federalism. In point of fact, the real issue before us concerns what is at stake in these six cases for the individual plaintiffs and their children, and what should be done about it. Because I reject the majority's resolution of these questions based on its invocation of vox populi and its reverence for "proceeding with caution" (otherwise known as the "wait and see" approach), I dissent.

That TED talk line's gotta sting.

posted by zombieflanders at 8:25 AM on November 7, 2014 [5 favorites]

For better, for worse, or for more of the same, marriage has long been a social institution defined by relationships between men and women. So long defined, the tradition is measured in millennia, not centuries or decades. So widely shared, the tradition until recently had been adopted by all governments and major religions of the world.

Millennia, really. Oh for fuck's sake, this is a ludicrous claim. Check out that passive and vague "defined by relationships between men and women" dodge around polygamy. Check out the conflation of "social institution" and "tradition" with marriage as a government-recognized legal status, which is lumped together with religious recognition of marriage.

I have not yet seen an argument against legal recognition of same-sex marriage that does not violate the separation of church and state.
posted by desuetude at 10:35 AM on November 7, 2014 [2 favorites]

All The Wrong Reasons to Ban Gay Unions: The Sixth Circuit offered not one but eight arguments to allow states to ban gay marriage in its deeply weird ruling. But is anyone really listening?
posted by homunculus at 12:50 PM on November 7, 2014

From the link above:
Judge Sutton doesn’t address any of these issues. It’s as if he’s throwing legal arguments at the wall, and hoping that some stick.

YUP.
posted by Strass at 1:25 PM on November 7, 2014